New Legislation

Listed Building Consent and Conservation Area Consent - Changes to Duration and to Procedures on Appeal and Applications Called-in by Scottish Ministers

Introduction

Provisions in the Planning etc. (Scotland) Act 2006 and the Historic Environment (Amendment) (Scotland) Act 2011 relating to the above are due to come into force on December 1, 2011. The changes will remove the automatic right to be heard in appeal cases and applications called-in for determination by Scottish Ministers in relation to these consents. Related changes to regulations and rules are, subject to Parliamentary consideration, due to come into force at that time. From December 1, 2011 the Town and Country Planning (Appeals) (Scotland) Regulations 2008 as amended will apply to these cases. The current procedures will continue to apply to appeals made and applications called-in before 1 December. The Scottish statutory instruments in this regard, and listed below, will appear on the www.legislation.gov.uk web site shortly. The default duration of these consents will also be amended. This is part of a wider commencement of provisions in the 2011 Act.

Listed Building Consent and Conservation Area Consent - Duration of Consent

Section 20(3) of the Planning etc. (Scotland) Act 2006 is due to come into force on December 1, 2011. This amends the provisions of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (the 1997 Act) on the duration of listed building consent. By virtue of section 66 of the 1997 Act, the duration of conservation area consent will also be amended.

Planning authorities will retain the right to specify whatever duration they consider appropriate for such consents, but where they do not so specify, for consents granted on or after December 1, 2011, a period of 3 years will apply.

If works are not commenced before the expiry of the specified or default period then the consent lapses. The specified or default period can be appealed as if it were a condition attached to the consent.

Listed Building Consent and Conservation Area Consent - Changes to procedures on Appeal and Applications Called-in by Scottish Ministers

Appeals

Where an appeal is made on or after December 1, 2011, either in relation to the decision of the planning authority, the failure of the planning authority to issue a decision within the specified timescale or against an enforcement notice, the Town and Country Planning (Appeals) (Scotland) Regulations 2008 as amended, will apply to the processing of the case.

The applicant and the planning authority have the opportunity to specify how they would like the appeal case to be considered (e.g. by written submission, site inspection and/ or a hearing), but it will be up to the reporter whether there will be any further procedure and what form it shall take.

The period for making such an appeal will from December 1, 2011 be reduced from 6 months to 3 months. Decision notices and enforcement notices issued on or after that date will need to be amended in that regard

Where the right to appeal arises before December 1, 2011, then the current 6 month period for making an appeal will apply.

Where an appeal is made before 1 December 2011, the current procedures for processing the appeal (including the right to appear before and be heard by a person appointed by the Scottish Ministers) will continue to apply to that case.

Called-in Cases

Similarly, applications called-in on or after 1 December 2011 will be subject to the procedures in the Town and Country Planning (Appeals) (Scotland) Regulations 2008 as amended. Where the call-in direction is issued before that date, the application will be processed under the current procedures.

SSIs

The Town and Country Planning (Appeals) (Scotland) Amendment Regulations 2011 - This amends the current 2008 Appeals Regulations for planning permission cases to include listed building and conservation area consent cases.

The Historic Environment (Amendment) (Scotland) Act 2011 (Commencement No. 2) Order 2011 - This commences, amongst other things, provisions in the 2011 Act repealing provisions in the 1997 Act containing the automatic right to be heard in relation to applications for listed building consent and conservation area consent called-in for determination by the Scottish Ministers and in certain appeal provisions.

The Historic Environment (Amendment) (Scotland) Act 2011 (Saving, Transitional and Consequential Provisions) Order 2011 - This preserves the effect of the repealed provisions of the 1997 Act for the purposes of cases called-in or appeals started before the changes come into force.

The Planning etc. (Scotland) Act 2006 (Commencement No. 12) Order 2011 - This commences provisions in the 2006 Act which remove the automatic right to be heard in relation to appeals in listed building and conservation area consent cases in the 1997 Act. It also commences provisions on the duration of such consents.

Planning etc. (Scotland) Act 2006 (Listed Buildings) (Saving Provisions) Order 2011 - This preserves the provisions repealed and amended as a result of the above commencement order for the purposes of those appeals started before the changes come into force.

The Town and Country Planning (Inquiries Procedure) (Scotland) Amendment Rules 2011 - The Town and Country Planning (Inquiries Procedure) (Scotland) Rules 1997 and The Town and Country Planning Appeal (Determination by Appointed Person) (Inquiries Procedure) (Scotland) Rules 1997 are amended so that they no longer apply to listed building and conservation area consent cases.

The Town and Country Planning (Appeals) (Written Submissions Procedure) (Scotland) Revocation Regulations 2011 - As listed building cases are the only ones to which the Town and Country Planning (Appeals) (Written Submissions Procedure) (Scotland) Regulations 1990 currently apply, these 1990 regulations will be revoked.

The Town and Country Planning (Listed Buildings and Buildings in Conservation Areas) (Scotland) Amendment Regulations 2011 - This removes the current references to appeals in the Planning (Listed Buildings and Buildings in Conservation Areas) (Scotland) Regulations 1987.

The Town and Country Planning (Enforcement of Control) (No. 2) (Scotland) Amendment Regulations 2011 - This amends the Town and Country Planning (Enforcement of Control) (No. 2) (Scotland) Regulations 1992 to remove references to enforcement notice appeals in relation to listed buildings and conservation areas. It also amends the Town and Country Planning (Miscellaneous Amendments) (Scotland) Regulations 2009 to remove amendments to the 1992 Regulations in relation to such appeals. There are also savings provisions to preserve the effect of the 1992 Regulations for appeals started prior to the 2011 and 2009 amendments.